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Preemptive State Smoke-Free Indoor Air Laws --- United States, 1999--2004

Exposure to secondhand smoke results in approximately 3,000 lung cancer deaths and 35,000 heart disease deaths in
the United States each year (1). Policies establishing smoke-free environments are the most effective method for reducing
exposure to secondhand smoke (2). Restrictions on where smoking is allowed are also associated with decreased cigarette consumption and possibly with increased cessation rates among workers and the general public
(3). Local laws often impose more stringent smoking restrictions than state laws
(3). Preemptive legislation prohibits communities from
enacting laws that are more stringent than or vary from the state law. One of the national health objectives for 2010 is to eliminate laws that preempt stronger tobacco-control laws (objective no. 27-19)
(4). In 1999, CDC published a list of states that, as of December
31, 1998, had laws that preempted stronger local smoking restrictions in one or more of three environments:
government worksites, private-sector worksites, and restaurants
(5). This report updates that list and summarizes changes in
preemptive state smoke-free indoor air laws during 1999--2004 for these three environments. The findings indicate that almost no progress is being made toward the 2010 goal of eliminating all preemptive state smoke-free indoor air laws, resulting in the potential for lesser health protection.

The status of smoke-free indoor air preemption provisions in state laws, as of December 31, 2004 (Table), is based on
data from the CDC State Tobacco Activities Tracking and Evaluation (STATE) System database, which contains
tobacco-related epidemiologic and economic data and information on state tobacco-related legislation
(6). The legislative data are identified quarterly from an online legal research database, coded, verified, and then entered into the STATE System. The system tracks smoke-free indoor air policies at government and private-sector worksites; restaurants; commercial and home-based child
care centers; and other sites, including bars, malls, grocery stores, enclosed arenas, public transportation facilities,
hospitals, prisons, hotels, and motels; however, it only tracks preemptive provisions concerning government and private-sector worksites and restaurants (6). State smoke-free indoor air policies for each environment can range from prohibiting all smoking, to allowing designated smoking areas with separate ventilation, to requiring or allowing designated smoking areas, to having
no smoking restrictions. States were coded as having preemption if they had a law indicating that local jurisdictions
were prevented from enacting smoking restrictions that were more stringent than or different from state law by virtue of a
provision that preempts local ordinances in all settings or a location-specific preemptive provision (e.g., one only applying
to government worksites). The opinions of state attorneys general and court decisions that affected whether state
tobacco-control laws preempt local laws are reflected in these results. Tobacco-control personnel in state health departments reviewed and commented on the preemption codes. Preemptive provisions of state smoke-free indoor air laws that were enacted before,
but became effective after December 31, 2004, were not included in this report. For example, Rhode Island adopted a
preemptive provision during the period covered by this analysis, but the provision did not take effect until March 2005. This provision
is scheduled to expire in October 2006, when another phase of the law takes effect.

As of December 31, 1998, a total of 17 states had preemptive provisions in smoke-free indoor air laws governing at least one of the three settings considered (16 for government worksites, 15 for private-sector worksites, and 17 for restaurants)
(5). During 1999--2004, state-level smoke-free indoor air laws lost preemptive provisions in two states; Delaware became the first state to repeal preemptive provisions in state smoke-free laws governing all sites and environments, and Louisiana
repealed some of its preemptive language. During this period, smoke-free indoor air laws also acquired preemptive status in three states; Mississippi and Oregon adopted preemptive provisions, and ambiguous provisions in New Hampshire were held to
be preemptive by the state court in 2003. During 1999--2004, two states (Delaware and Louisiana) repealed, and two states (Mississippi and Oregon) adopted preemption provisions in laws for government worksites; two states (Delaware
and Louisiana) repealed, and one state (Oregon) adopted preemption provisions in laws for private-sector worksites; and one state (Delaware) repealed, and two states (New Hampshire and Oregon) gained preemptive provisions in laws for
restaurants. Montana also adopted preemptive provisions during this period for all businesses with video-gambling licenses, but this legislation was later deemed unconstitutional*. As of December 31, 2004, a total of 19 states had at least one type
of preemptive provision for smoke-free indoor air legislation.

Editorial Note:

The findings of this analysis indicate that preemption provisions in state smoke-free indoor air laws
remain common. States without such preemptive provisions may set minimum requirements and, therefore, allow the continued passage and enforcement of local ordinances that can establish a greater level of protection of public health.

The findings in this report are subject to at least two limitations. First, because the study only tracks preemptive
provisions affecting three specific areas, it does not completely describe state efforts to repeal or add to preemption in all settings. For example, in 2003, Nevada rescinded preemptive provisions in laws for public schools, and North
Carolina rescinded preemptive provisions in laws for public schools and some college campus buildings. Second, because the
language of potentially preemptive tobacco-control provisions in state law can be ambiguous, state laws classified as preemptive by
the STATE System might not have actually prevented local communities from adopting stricter tobacco-control regulations,
and state laws that are not classified as preemptive might have been interpreted as being so, preventing local action; the
STATE System would not have identified such instances. In addition, court rulings can affect how a law is interpreted and enforced. Numerous state and local courts have issued rulings in cases contesting preemptive provisions in state smoke-free indoor air laws. In certain cases, the court rulings affirmed the prevailing view of the state law. For example, the state supreme courts of West Virginia and
Kentucky§, in 2003 and 2004, respectively, found that state tobacco-control laws did not preempt
more stringent local smoke-free laws. In other instances, however, court decisions have found state laws that were widely regarded as not being preemptive to be so. A 1990 New Hampshire law regulating smoking in enclosed workplaces and public places
was generally viewed as not preempting more stringent local smoke-free ordinances, and at least three municipalities subsequently adopted ordinances that were stronger than the state law. In 2002, a legal challenge was filed against one of these municipal ordinances on the grounds that the local ordinance was preempted by state law. Although a county superior court upheld the ordinance, the restaurant appealed the ruling and, in 2003, the New Hampshire Supreme Court reversed the lower
court's decision and held that the state law preempted the municipal
ordinance¶. In February 2005, beyond the timeframe
captured in this analysis, the Washington State Supreme Court ruled that state law
preempted more stringent local smoke-free ordinances**.

New legal developments continue to clarify the extent to which state laws can preempt stricter local laws. In January 2005, Mecklenburg County, North Carolina, formally asked the state legislature to exempt the county from a provision in state law preventing communities from adopting new smoke-free ordinances more stringent than state tobacco-control laws.

Comprehensive, population-based policy interventions are effective in reducing tobacco use, and the establishment
of smoke-free environments is the most effective method for reducing secondhand smoke exposure (2,3). For example,
during the 6 months after Helena, Montana, prohibited smoking in all workplaces and public places in 2002, the number of hospital admissions for acute myocardial infarctions declined 40% but then rebounded when the ordinance was suspended (7). In addition, other findings suggest that passive exposure to tobacco smoke for as little as 30 minutes compromises coronary circulation in nonsmokers and that nonsmokers who are exposed to typical levels of secondhand smoke incur approximately one third the tobacco-related increased heart disease risk of someone who smokes 20 cigarettes a day
(8). Whereas increased restrictions on smoking in public places have afforded expanded protection for certain persons, others continue to be exposed
to secondhand smoke in the workplace. For example, a CDC study found that of all occupations surveyed, nonsmoking waiters and waitresses had the highest levels of workplace exposure to
secondhand smoke, a known human carcinogen
(9).

The importance of smoke-free laws and policies in comprehensive tobacco-control interventions is reflected by their inclusion in national health objectives for 2010 and in CDC surveillance efforts
(3,4). The tracking of state legislative data
is an important form of public health surveillance, and the STATE System is a well-established example of tracking
and reporting on laws with a public health impact. CDC will continue to monitor progress toward achieving the national
health objectives to reduce tobacco-related morbidity
and mortality.

US Department of Health and Human Services. Reducing tobacco use: a report of the Surgeon General. Rockville, MD: US Department of
Health and Human Services, Public Health Service, Office of the
Surgeon General; 2000.

US Department of Health and Human Services. Healthy People 2010, 2nd ed. With understanding and improving health and objectives
for improving health (2 vols.). Washington, DC: US Department of Health and Human Services; November 2000.

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